Alliance for the Wild Rockies v. Kruger

950 F.Supp.2d 1172

ALLIANCE FOR the WILD ROCKIES, Native Ecosystems Council, Plaintiffs,

v.Faye KRUGER, Regional Forester of Region One of the U.S. Forest Service, United States Forest Service, an agency of the U.S. Department of Agriculture, and U.S. Fish and Wildlife Service, an agency of the U.S. Department of Interior, Defendants.

No. CV 12–150–M–DLC.

United States District Court,

D. Montana,

Missoula Division.

June 24, 2013.

Timothy M. Bechtold, Bechtold Law Firm, Rebecca Kay Smith, Missoula, MT, for Plaintiffs.

Daniel J. Pollak, U.S. Department of Justice, Wildlife and Marine Resources Section, Environment and Natural Resources Division, Washington, DC, Mark Steger Smith, Office of the U.S. Attorney, Billings, MT, for Defendants.

ORDER

DANA L. CHRISTENSEN, District Judge.

Introduction

Plaintiffs filed suit on September 6, 2012, seeking judicial review of the U.S. Forest Service's Record of Decision and Environmental Impact Statement (“EIS”) permitting implementation of the Cabin Gulch Project (“Project”) on the Helena National Forest (“Forest”). Plaintiffs also seek review of the Helena National Forest Land and Resource Management Plan (“Forest Plan”).

Plaintiffs claim the Project and the Forest Plan violate Section 7 of the Endangered Species Act (“ESA”) because the United States Forest Service (“Forest Service”) failed to complete ESA consultation for grizzly bears and lynx for the Project. Plaintiffs also argue Defendants' ESA consultation for grizzly for the Forest Plan is inadequate. They claim the Project and the Forest Plan violate the National Forest Management Act (“NFMA”) and National Environmental Policy Act (“NEPA”) in various ways. Plaintiffs further allege the Project EIS fails to sufficiently address elk management and violates standards for elk habitat effectiveness and security; the Forest Plan Amendment did not have appropriate public involvement, appropriate environmental analyses, or use the best available science; the Project violates the Management Area T–3 standard; the EIS fails to take a hard look at whitebark pine restoration and lynx and grizzly presence; the EIS fails to address Standard ALL S1; and the EIS fails to address the best available science on grizzly management.

Defendants respond that the Project and Forest Plan comply with the ESA because (1) no consultation was needed because the agencies reasonably determined the grizzlies and lynx were not species that may be present in the Project area; (2) there is no basis for a formal ESA consultation because the agencies agree the Project is not likely to adversely affect either species; and (3) Plaintiffs' arguments regarding the 2006 Forest Plan Biological Opinion are irrelevant and Plaintiffs lack standing to challenge it. Defendants further argue the Project complies with their obligations under NEPA and NFMA because they relied on the best available science; the Forest Plan Amendment had appropriate public notification; the Project is consistent with Management Area T–3 Standard; the EIS fully considered the effects on whitebark pine; and lynx and grizzlies are not species that may be present in the Project area.

Plaintiffs' motion to supplement the record will be denied and their motion for summary judgment will be denied on all claims except their claim regarding violation of the ESA consultation requirements for lynx. Defendants improperly substituted a higher “occupancy” standard pursuant to ESA Section 4 when determining whether lynx “may be present” under ESA Section 7 consultation. This procedural error mandates enjoining the Project and remand of this case for Defendants to consider whether lynx are a species that “may be present” under the proper standard. Plaintiffs ESA claims regarding grizzly bears fail because it appears Defendants followed the correct “may be present” standard, and even if they did not, Plaintiffs' evidence regarding grizzly bear presence does not meet the “may be present” standard. Plaintiffs do not demonstrate that Defendants' decisions regarding elk habitat violate NEPA or NFMA, and the remainder of their NEPA and NFMA claims fail for the reasons stated herein.

Motion To Supplement the Record

Plaintiffs filed a motion to supplement the administrative record on December 4, 2012. (Doc. 9.) Plaintiffs filed their motion for summary judgment based upon facts assuming the motion would be granted prior to the Court ruling on the motion to supplement, so the Court deferred ruling until resolution of the cross summary judgment motions. A portion of Plaintiffs' argumentregarding whether grizzlies may be present in the Project area is based upon information contained within the proposed supplement to the record.

Judicial review of actions brought under the Administrative Procedures Act limit the scope of review to the administrative record. Camp v. Pitts, 411 U.S. 138, 142, 93 S.Ct. 1241, 36 L.Ed.2d 106 (1973). The initial presumption is that the agency properly designated the administrative record. Cook Inletkeeper v. EPA, 400 Fed.Appx. 239, 240 (9th Cir.2010) (quoting Bar MK Ranches v. Yuetter, 994 F.2d 735, 740 (10th Cir.1993)). However, the whole administrative record is not necessarily what has been submitted by the agency, because it includes documents and materials both directly and indirectly considered by agency decision-makers. Thompson v. U.S. Dep't of Labor, 885 F.2d 551, 555 (9th Cir.1989).

Four exceptions to this rule are generally considered for supplementation of an administrative record: (1) when necessary to determine whether the agency has considered all relevant factors and explained its decision, (2) when the agency has relied on documents not in the record, (3) when supplementing the record is necessary to explain technical terms or complex subject matter, or (4) when plaintiffs make a showing of agency bad faith. Ctr. for Biological Diversity v. U.S. Fish & Wildlife Serv., 450 F.3d 930, 943 (9th Cir.2006) (citing Southwest Ctr. for Biological Diversity v. U.S. Forest Serv., 100 F.3d 1443, 1450 (9th Cir.1996)). Supplementation of the record with non-agency materials may be appropriate when reviewing an ESA citizen-suit failure-to-consult claim. See Western Watersheds Project v. Kraayenbrink, 632 F.3d 472, 497 (9th Cir.2011)(district court may review material outside the record when reviewing ESA claim). Courts within this district have held that

Kraayenbrink leaves us uncertain whether the panel discarded the APA record review rule entirely or simply found that the extra-record documents presented to the district court in that case fit within one of the four standard exceptions outlined above. The better view, in the opinion of this Court, is that the traditional four exceptions still apply to plaintiffs' requests for supplementation of the administrative record for ESA claims, but the narrowness of the construction and application of these exceptions, see Lands Council v. Powell, 395 F.3d 1019, 1030 (9th Cir.2005) (“these exceptions are narrowly construed and applied”), should be relaxed for such claims.

Alliance for the Wild Rockies v. United States Dept. of Agriculture, CV 11–76–M–CCL, doc. 64 at 6 (July 23, 2013).

This Court agrees that the four exceptions outlined above apply here, and Plaintiffs have not met their burden of demonstrating the proposed supplemental materials should be considered under any exception. Exhibit 3 is an October 16, 2011 Helena Independent Record newspaper article discussing a possible grizzly bear sighting near Helena, Montana. It was not considered in the decision to approve the project, but the Forest Service did consider “the actual records of observations and other evidence of relevant grizzly bear occurrence in analyzing the effects of the Project.” (Doc. 11–2 at 3.) Thus, the article is not necessary to determine whether the agency has considered all relevant factors because the agency considered the unverified sightings as part of its decision.

Exhibit 4 is an Interagency Grizzly Bear Committee Taskforce Report (1998) that evaluates effects of motorized access on grizzly bears within recovery zones. The Project is not in a grizzly bear recovery zone, and the key issue regarding grizzly bears in this case is whether Defendants appropriately determined they are not a species that may be present in the Project area. For these reasons, Exhibit 4 is irrelevant and does not fall within any exceptions permitting supplementation of the record.

Exhibit 5 is a study by Schwartz et al. entitled “Hazards Affecting Grizzly Bear Survival in the Greater Yellowstone Ecosystem” (2010). Again, relevancy of this study is questionable at best because the Project is not in the Yellowstone Ecosystem and survival of the grizzly bear is not directly at issue. This document also does not fall within an exception and the Court will not consider it. Plaintiffs do not surmount the presumption that the agency properly designated the administrative record and their motion to supplement will be denied.

Motion for Summary Judgment

Facts

The Project is a timber sale planned for 15,600 acres within the Big Belt Mountain Range (“Big Belts”) 15 miles northeast of Townsend, Montana. FS: 155125.¹ A mountain pine beetle outbreak has killed many trees within the Project area. Id. The goals of the Project are to create vegetative conditions that resist fire and further insect infestation, reduce hazardous fuels, improve water quality, and provide timber. Id. The Project's activities take place on 2,891 acres and include: commercial thinning on 331 acres, improvement cuts of approximately 1,222 acres, pre-commercial thinning on approximately 86 acres, research thinning on approximately 233 acres, prescribed fire on 602 acres, regeneration harvests on 417 acres of which 286 acres target whitebark pine establishment. FS: 56208. Other activities include construction of 2.3 miles of temporary roads and 4.2 miles of short-term specified roads. Id. Approximately...